Pre-cognizance hearing under Section 223(1) is mandatory; cognizance without hearing the accused was quashed and remitted.

Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 was treated as a mandatory pre-cognizance safeguard requiring notice and an opportunity of hearing to the accused before cognizance is taken. The provision also permits dispensing with examination of the complainant where the complaint is in writing by a public servant acting or purporting to act in discharge of official duties. Although the complaint was treated as one by a Government agency and verification of the complainant was dispensed with, cognizance was taken without hearing the accused. That omission was held contrary to the statutory mandate, so the cognizance order was quashed and the matter remitted for fresh consideration after hearing the petitioner.

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Issues: Whether the Magistrate could take cognizance on a complaint without first giving the accused an opportunity of being heard under Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023, and whether the complaint by a public servant attracted the exception to examination of the complainant.

Analysis: Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 was treated as the governing pre-cognizance safeguard. The provision requires notice and an opportunity of hearing to the accused before cognizance is taken, while carving out an exception from examination of the complainant where the complaint is made in writing by a public servant acting or purporting to act in discharge of official duties. The order proceeded on the basis that the complainant was a Government agency and dispensed with verification of the complainant, but the accused was not afforded an opportunity of hearing before cognizance was taken. That omission was held to be contrary to the statutory mandate.

Conclusion: The cognizance order was liable to be quashed for breach of the mandatory requirement of hearing the accused under Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023, and the matter was remitted to the Magistrate for fresh consideration after hearing the petitioner.

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